United States Court of Appeals,
Fifth Circuit.
Nos. 95-20435, 95-20620.
Earl Wayne MYERS, Plaintiff-Appellant,
v.
Johnny KLEVENHAGEN, Sheriff, Defendant-Appellee.
Creighton DELVERNE, Plaintiff-Appellee,
v.
Johnny KLEVENHAGEN, Sheriff, Defendant-Appellant.
Oct. 11, 1996.
Appeals from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.
PER CURIAM:
Earl Wayne Myers, proceeding pro se, filed a 42 U.S.C. § 1983 prisoner civil rights action
against Sheriff Johnny Klevenhagen of Harris County, Texas. Claiming to be indigent, Myers
complained that the Sheriff had violated a Texas criminal procedure statute, as well as Myers's
constitutional rights, by debiting his inmate trust account for medical services without conducting an
indigency hearing. Creighton Delverne, another indigent inmate, also brought suit against Sheriff
Klevenhagen under section 1983 for a $3.00 debit to his trust account to cover the charge for a
prescription drug. In Myers's action, the district court granted summary judgment for the Sheriff on
the grounds that no constitutional violation had occurred and that, in any event, the Sheriff was
entitled to qualified immunity from prosecution. In contrast, Delverne's case survived summary
judgment and was tried to the bench. Finding that Harris County had violated Delverne's Fourteenth
Amendment procedural due process rights, the trial judge rendered a final judgment for Delverne in
the amount of $3.00.
On appeal, we appointed counsel to represent Myers and Delverne, and we granted the
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Sheriff's unopposed motion to consolidate these factually similar, but procedurally different cases.
Based on our conclusion that the consolidated appellate record demonstrates no constitutional
violation that is actionable under 42 U.S.C. § 1983, we affirm the grant of summary judgment for the
Sheriff in Myers's action, and we reverse the final judgment in favor of Delverne.
I
Although dissimilar in some respects, these cases share a common thread of facts and the
same threshold legal issue. We begin our analysis by reviewing the critical facts that are common to
both actions. The record shows that both Myers and Delverne were aware of the Harris County jail's
newly instituted policy of charging nonindigent inmates for medical care, which was authorized by
article 104.002(d) of the Texas Code of Criminal Procedure.1 According to Myers's own handwritten
affidavit, he heard Sheriff Klevenhagen explain the policy and cite to article 104.002(d) in a television
interview that was broadcast on the local news. On the next available access date, Myers went to the
jail law library and read the statute. After reviewing article 104.002(d), Myers concluded that,
because of his indigency, he was exempt from the county's charges for medical care. Delverne
testified at his bench trial that he had read about the county's policy of charging nonindigents for
medical service before he entered the Harris County jail in August 1992. Thereafter, both inmates
sought and received medical services while they were incarcerated. When these medical services
1
At the time that these actions were filed and litigated, article 104.002(d) provided:
A person who is or was a prisoner in a county jail and received medical, dental, or
health related services shall be required to pay for such services when they are
rendered. If such prisoner cannot pay for such services because of indigence, as
defined in Chapter 61, Health and Safety Code, said county shall assist the prisoner
in applying for reimbursement through that chapter or the hospital district of which
he is a resident. A prisoner who does not meet the eligibility for assistance
payments shall remain obligated to reimburse the county for any medical, dental, or
health services provided and that county shall have authority to recover the
amount expended in a civil action.
TEX.CODE CRIM.PROC.ANN. art. 104.002(d) (Supp.1995). Although the Texas
statute authorized a county to charge all inmates (indigent and nonindigent) for medical
services, the record shows that the Harris County Sheriff's Department instructed its clinic
personnel and triage nurses by memorandum that no inmate would be denied medical
services if the inmate indicated an inability to pay the charges assessed.
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were requested, each inmate signed a newly developed form labeled "Charge Document," which listed
the date and type of medical services that the inmate had received. The form also indicated the
amount charged for each service rendered, but it did not contain a printed box or blank where
indigent inmates could indicate their status.2 Both inmates claimed that jail personnel told them to
sign the charge document or they would not receive medical services. Delverne specifically testified
that he signed the charge document under duress after a nurse told him that he must sign the
document before he could receive his prescription.3 In each case, the jail debited the inmate's trust
account for the medical services that each had received, as indicated on the signed charge documents.
This debit resulted in negative balances to both Myers's and Delverne's trust accounts.4
Believing that the Sheriff had made improper debits to their accounts, both Myers and
Delverne allege that they filed internal grievances at the jail. Delverne testified that he believed he
2
According to the trial testimony of Mr. Don Nichols, medical administrator for the Harris
County Sheriff's Department, the county began using the original "Charge Documents" on or
about August 3, 1992, when the new medical policy was implemented. Nichols testified that
instructions regarding the new policy, written in English and Spanish, were posted in all jail cells.
These instructions advised indigent inmates that they could "either refuse to sign or write indigent
across the charge ticket." The record also contains memoranda that instructed clinic personnel
and triage nurses to write "INDIGENT" on the charge document, if the inmate believed that s/he
could not pay the charges because of indigency. Nichols further testified that the Sheriff's
Department held meetings with triage nurses to explain the new procedures.
According to Nichols, in September 1992, approximately one month after
instituting the initial charge document procedures, the county developed a new form of
charge document that contained an additional box marked "Check if indigent/unable to
pay." Nichols testified that this was done "to make it easier for inmates to declare their
indigent status by simply checking a box."
3
Major Michael William Quinn of the Harris County Sheriff's Department Support Services
Bureau testified that, if a nurse were to act in the manner described by Delverne, the nurse would
be acting "outside the policy."
4
By Myers's own account, his inmate trust account experienced, at one time, a negative
balance of $120.00. Without data processing records, however, Myers conceded that he had no
way of knowing the actual balance in his account following any given medical service debit that
the county made. He stated in court documents that "an exemption of one-hundred dollars
($100.00) is not out of line in this matter."
The record indicates that Delverne's account experienced a negative balance of
$1.43.
3
had filled out one grievance form and placed it in a grievance box on the jail's wing. In Delverne's
words, his grievance remained "unresolved" at the time that he filed his pro se civil rights complaint
against Sheriff Klevenhagen. Myers alleged in his complaint that he had "filed numerous grievances
and none have been sustained." Myers later submitted in court documents that he had written
complaints to: "Mr. Don Nichols, Harris County Jail Medical Department; Sheriff Johnny
Klevenhagen, Harris County Sheriff; Mr. Mike Driscoll, Harris County Attorney; Mr. John Lindsey,
Harris County Judge; Mr. Kelly Nichols, Harris County Risk Management." Myers informed the
district court that all of the foregoing ignored his complaints except Nichols, who held an interview
with him.5
II
A
Although the consolidated cases before us present differing procedural postures that might
otherwise require distinct standards of appellate review and analysis, the same threshold legal issue
is common to both: that is, whether these plaintiffs have alleged the violation of a constitutional right
at all. Doe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1402 (5th Cir.1996), rehearing en
banc granted (June 17, 1996) (to state a claim under section 1983, a plaintiff must allege a violation
of rights secured by the Constitution or laws of the United States); Leffall v. Dallas Indep. School
Dist., 28 F.3d 521, 525 (5th Cir.1994). We review de novo the district courts' differing legal
conclusions on this issue. Harris v. Angelina County, Tex., 31 F.3d 331, 333 (5th Cir.1994); see
also Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)
(threshold determination regarding whether plaintiff has asserted a constitutional violation at all is a
purely legal question).
B
At oral argument, counsel for Myers and Delverne stated that debiting the plaintiffs' inmate
5
Other than Myers's own statements, the record contains no evidence of the interview with
Nichols. Myers stated in court documents: "When I discussed a hearing with Mr. Don Nichols
he said he would take care of it.... I have never been given a reason for denial."
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trust accounts was a constitutional due process violation because of the "lack of notice of [plaintiffs']
right to assert [their] indigent status and the lack of opportunity by which to do so." According to
the plaintiffs, the debits to their accounts amounted to a deprivation of property because the Sheriff,
in debiting an indigent's account, violated the jail's own policy and procedures of not charging
indigents for medical services. The plaintiffs further assert coercion on the part of the Sheriff because
they claim to have been told by the jail's medical personnel that, unless they signed a charge
document, they would not receive medical services. We thus understand the plaintiffs' constitutional
claim to be that, by requiring plaintiffs, who were indigent, to pay for medical services without
notifying them of their right to assert indigency on the original medical charge document, the Sheriff
deprived the plaintiffs of property (i.e., monies in their inmate trust account) without affording them
constitutional due process. The plaintiffs seek no injunctive or equitable relief. Instead, as counsel
informed us at oral argument, they are merely requesting money damages, or reimbursement, for the
charges to their respective accounts. These charges occurred during the initial months of the medical
charge policy's implementation. The approximate two-month period of time at issue corresponds to
the time during which the Harris County jail used the original form of charge document, which did
not contain a printed box to indicate indigency. See supra note 2 and accompanying text.
C
Our case law is clear, however, that a priso n official's failure to follow the prison's own
policies, procedures or regulations does not constitute a violation of due process, if constitutional
minima are nevertheless met. Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir.1995); Murphy v.
Collins, 26 F.3d 541, 543 (5th Cir.1994); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir.1986).
In determining whether constitutional minima have been satisfied, this circuit has relied upon the
holdings of the United States Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
Writing for our court in Murphy v. Collins, Chief Judge Politz construed Hudson to hold that
"deprivations of property caused by the misconduct of state officials do not infringe constitutional
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due process provided adequate state post-deprivation remedies exist." Murphy, 26 F.3d at 543. In
Murphy, an inmate sued prison officials under 42 U.S.C. § 1983 because the officials had allegedly
confiscated his property in violation of the prison's policy requiring notice and an opportunity to be
heard. We held, nonetheless, that the prison's violation of its own notice and hearing policy did not
infringe upon the inmate's constitutional due process rights because the state tort remedy of
conversion was available to the inmate. Murphy, 26 F.3d at 544; see also Marshall v. Norwood, 741
F.2d 761, 764 (5th Cir.1984) (where state provided adequate postdeprivation tort remedy, inmate
did not suffer an actionable property loss under section 1983).
More recently, our court has explained that the "Parratt/Hudson doctrine dictates that a state
actor's random and unauthorized deprivation of a plaintiff's property does not result in a violation of
procedural due process rights if the state provides an adequate post-deprivation remedy." Brooks v.
George County, Miss., 84 F.3d 157, 165 (5th Cir.1996) (citations omitted). In essence, the doctrine
protects the state from liability for failing to provide a predeprivation process in situations where it
cannot anticipate the random and unauthorized actions of its officers. Id. The burden is on the
complainant to show that the state's postdeprivation remedy is not adequate. Hudson, 468 U.S. at
539, 104 S.Ct. at 3206-07 (O'Conner, J., concurring); Marshall, 741 F.2d at 764.
Applying this precedent to the appeal at hand, we note that the alleged due process violation
is, essentially, a failure to follow the Sheriff's own regulations that results from an unauthorized debit
to the plaintiffs' inmate trust accounts, brought about by the coercion (i.e., "misconduct") of jail
officials. We further note that the state of Texas provided indigent prisoners such as Myers and
Delverne with a statutory postdeprivation remedy of "applying for reimbursement." TEX.CODE
CRIM.PROC.ANN. art. 104.002(d) (Supp.1995) (see supra note 1 for text of statute). As an added
safeguard, article 104.002(d) provided that the county "shall assist the prisoner in applying for
reimbursement through [Chapter 61 of the Texas Health and Safety Code] or the hospital district of
which he is a resident." Id.
Our review of the appellate record in its entirety reveals no evidence that either Myers or
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Delverne applied for reimbursement pursuant to article 104.002(d), sought assistance with applying
for statutory reimbursement, or even requested information about the reimbursement process. This
is so despite the fact that both inmates were aware of the statute and expressl y cited to article
104.002(d) in their respective handwritten section 1983 complaints.6 Mindful that the plaintiffs only
seek monetary reimbursement on appeal, our review of the appellate record further reveals no
evidence that this postdeprivation reimbursement remedy was inadequate.
Moreover, we are convinced on this record that the Sheriff has satisfied, at least minimally,
any constitutional due process standards that might be required with respect to notifying indigent
inmates of the jail's new medical services policy. The record evidence demonstrates that the Sheriff
made efforts to post notice of the policy in all jail cells and that the notice instructed indigent inmates
on how to complete the medical forms so as to avoid charges for medical services. The evidence
further demonstrates that the jail's medical personnel were instructed by memoranda and in meetings
on procedures for completing an indigent inmate's medical charge document. The jail also advised
its medical personnel that no inmate would be denied medical services if the inmate indicated an
inability to pay.
Plaintiffs allege, however, that notwithstanding the jail's efforts to disseminate information
about the new policy, medical personnel required them to sign the charge documents in order to
receive medical services. In response to the plaintiffs' allegations, the testimony at Delverne's trial
indicates that any such conduct on the part of the jail's medical personnel would be outside of Harris
County's medical services policy. See supra note 3. Such misconduct on the part of Harris County's
medical personnel as alleged by the plaintiffs is precisely the kind of unauthorized conduct addressed
in Parratt/Hudson. Consequently, as discussed above, such conduct can never serve as the basis for
a constitutional due process violation when, as here, the state provides an adequate postdeprivation
6
Referring to article 104.002(d) in his complaint, Myers states: "If Inmate is Indigent the
Sheriff is directed to the County Medical Authority for repayment. This is not done by Johnny
Klevenhagan." Myers's apparent misconstruction of the controlling statute does not, of course,
excuse his own failure to pursue an available remedy.
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remedy.
In sum, we conclude that the plaintiffs have failed to state a claim for a constitutional due
process violation that is actionable under section 1983. First, with respeche Sheriff met the
constitutional minima by posting information regarding the new medical services policy in the jail
cells, by distributing explanatory memoranda to the jail's personnel and by holding meetings about the
new policy with medical personnel. Second, to t he ext ent that the plaintiffs are claiming that the
Sheriff impaired their constitutional rights by failing to follow state procedural law or the jail's own
policies and procedures, we must reject this claim under the rationale of Murphy v. Collins. Finally,
to the extent that the plaintiffs are relying on the alleged coercive conduct of the jail's medical
personnel to state their constitutional claim, it is clear to us that under the Parratt/Hudson doctrine
such conduct was unauthorized and therefore fails to support, in the light of an adequate
postdeprivation remedy, the plaintiffs' theory of a constitutional due process violation. Thus, because
a postdeprivation state remedy existed, which the plaintiffs have failed to show was inadequate, all
these alleged violations fail to state an actionable constitutional claim under section 1983. Having
found no constitutional violation on this record, we need not reach the issue of qualified immunity
or the other remaining issues raised by the parties in their briefs.
We therefore AFFIRM the district court's order granting summary judgment for Johnny
Klevenhagen in Civil Action No. H-93-1993, and we REVERSE the final judgment in favor of
Creighton Delverne in Civil Action No. H-92-3338. The judgments below are
AFFIRMED in No. H-93-1993; and REVERSED in No. H-92-3338.
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